CSOS or Court: Legal Realities in Community Schemes

For over a decade, owners in sectional title schemes and homeowners’ associations (HOAs) have lived under the assumption that the Community Schemes Ombud Service (CSOS) was their only legal recourse.

The general consensus among many practitioners was that the CSOS Act had effectively "locked the gates" to the High Court for governance and administrative disputes.

The judgment in Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner’s Association and Others 2026 (1) SA 449 (SCA) has shattered this misconception.

This ruling, delivered by the Supreme Court of Appeal (SCA) in late 2025, provides a definitive answer: The doors of the High Court remain wide open.

Exclusive Jurisdiction

Since the CSOS Act 9 of 2011 came into operation, many stakeholders believed that disputes, ranging from levy disagreements to rule enforcement, had to be referred to the Ombud first. The intention behind CSOS was noble: to provide a speedy, informal, and affordable mechanism for resolving community scheme friction without the crushing costs of formal litigation.

The Parch Properties case put this assumption to the test. The dispute involved a developer’s attempt to incorporate land into an existing HOA. When the HOA resisted, the developer bypassed the CSOS and went straight to the Western Cape High Court. The HOA argued that the court had no business hearing the matter because the CSOS Act held exclusive jurisdiction.

The SCA’s Verdict: A Concurrent Path

The SCA’s decision was clear and impactful. The Court held that the CSOS Act does not expressly or implicitly oust the High Court’s inherent jurisdiction. Instead, CSOS functions as an alternative forum.

Key takeaways from the ruling include:

1. The High Court retains its power: Unless a statute explicitly says otherwise, the High Court’s jurisdiction is preserved.

2. A "Parallel" system: CSOS exists alongside the courts, not as a replacement for them.

3. Freedom of Choice: Parties—whether they be individual owners, developers, or bodies corporate—retain the freedom to choose their battlefield based on the complexity, urgency, and nature of the dispute.

   
   

For owners, this is a double-edged sword. While it preserves the right to high-level judicial intervention, it also means that well-funded opponents can still draw parties into expensive High Court litigation from the outset.

Appealing the Adjudicator’s Order

While the choice to go to court exists at the beginning of a dispute, many people still opt for the CSOS due to its low cost. But what happens when the CSOS adjudication order is simply wrong?

Many scheme members feel that the quality of adjudication has been inconsistent, leading to a desire to "set the record straight" in open court.

Section 57 of the CSOS Act allows for an appeal to the High Court, but it is a narrow path.

The Limitations of a Section 57 Appeal:

1. Question of Law Only: You cannot appeal because you disagree with the facts or the adjudicator’s interpretation of the evidence. You must prove the adjudicator made a legal error (misinterpreting a specific section of the Sectional Titles Schemes Management Act).

2. The 30-Day appeal: You have only 30 days from the delivery of the order to lodge your appeal. For many, this is barely enough time to consult an attorney and secure the necessary funds.

3. Prohibitive Costs: Even though you started at the "free" Ombud, once you enter the High Court for an appeal, you are playing by High Court rules, which means High Court legal fees.

Judicial Review under PAJA

The most significant development for dissatisfied owners is the realization that an appeal is not the only way out.

Because a CSOS adjudicator is a public functionary exercising a public power, their decisions constitute administrative action. This brings into play the Promotion of Administrative Justice Act (PAJA).

If a CSOS order is fundamentally flawed, you can apply to the High Court to have the order reviewed and set aside.

Review Over Appeal

While an appeal is limited to "questions of law," a Review is far broader. Under Section 6 of PAJA, you can challenge an order if:

• The adjudicator was biased or reasonably suspected of bias.

• The adjudicator failed to take relevant considerations into account.

• The decision was not rationally connected to the information provided.

• The process was procedurally unfair (e.g., you weren't given a chance to respond to evidence).

Time advantage

Perhaps the most practical benefit of a PAJA Review is the timeline. While an appeal must be filed within 30 days, a review application can be made within 180 days. This provides owners with an additional five months to seek advice, raise funds, and build a robust case.

References:

 Deonay Scholtz (Associate, Property)  PH Attorneys: www.phinc.co.za

Auren Freitas dos Santos (Director) Paddocks https://www.paddocks.co.za